The ECCC and the Missing International Co-Investigating Judge

On 2 December 2011, Mr. Laurent Kasper-Ansermet, the International Reserve Co-Investigating Judge issued a decision ordering the resumption of the judicial investigation in Case 003 at the Extraordinary Chambers in the Courts of Cambodia (ECCC).[1] The “decision” to reopen the investigation was the product of “reconsidering” several requests from the International Co-Prosecutor, which had been rejected by the Co-Investigating Judges when Mr. Kasper-Ansermet’s predecessor was in office.[2] Mr. Kasper-Ansermet claimed the ability to issue the “decision” on the fact that the notice terminating the investigation was not a “Closing Order” or “an order terminating the investigation” within the meaning of the applicable rules.[3] He also claimed the authority to issue the “decision” because the Pre-Trial Chamber’s inability to decide on the International Co-Prosecutor’s appeal of the denial of his requests left the Co-Investigating Judges seized of Case 003.[4]

For guidance on how to decide on the reconsideration of the requests, Mr. Kasper-Ansermet turned to the applicable practice of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).[5] Based on these precedents, he decided that the International Co-Prosecutor’s motion was valid and that the reasons for previously rejecting it were unfounded.[6] He then considered that the accused in Case 003 have a right to be heard,[7] the victims have a right to justice and the civil parties have a right to participate and that the conclusion of the investigation violated the right of all the parties.[8]

In the following days, the dispute leapt from the level of the Co-Investigating Judges and landed in the laps of the judges of the Pre-Trial Chamber. On 3 February 2012, the President of the Pre-Trial Chamber returned the documents related to the dispute over whether to reopen the investigation pursuant to an “Interoffice Memorandum” which claimed that Mr. Kasper-Ansermet “does not have enough qualification to undertake his duty according to legal procedure in force”.[9] The decision to return the documents as a summary administrative procedure appears to have been taken by only the national judges of the Pre-Trial Chamber without the input of the international judges.[10]

The international judges, in response, issued a full-length reasoned decision on why they would have found Mr. Kasper-Ansermet to have standing to file the “decision” and why they believed that the failure of the Pre-Trial Chamber to make an official “judicial” as opposed to an administrative decision means that the reopening of the investigation is to proceed.[11] In a nutshell, the international judges felt that the incumbent International Reserve Co-Investigating Judge assumes all the rights and duties of the International Co-Investigating Judge when that latter office becomes vacant.[12] The judges also set out that, because they view the issue as a live one, the investigative steps must proceed pursuant to Rule 72(4)(d) by default.[13]

On 9 February 2012 Mr. Kasper-Ansermet issued a press release summarizing his “decision’s” contents and justifying its issuance.[14] He then asserted, before the issuance of the international judges’ “dissent”, that the failure of the Pre-Trial Chamber to reach the merits meant that the investigation was to proceed in accordance with Rule 72.[15]

The following day, 10 February 2012, the National Co-Investigating Judge issued a press-statement wherein he lambasted Mr. Kasper-Ansermet alleging, among other things, that the decision and press release were made with “ill intentions.”[16] He went on to say that references to the Internal Rules of the ECCC were “purely an exaggeration”, that Mr. Kasper-Ansermet was not authorized “in the capacity as an International Reserve Co-Investigating Judge, to undertake any procedural actions while the seat of the International Co-Investigating Judge is still vacant” and that “[t]he issuance of such a public statement by Mr. Ansermet furthers the doubt of the National Co-Investigating Judge regarding Mr. Ansermet’s professionalism —  is he a judge or a press officer?”[17]

This is not the first time that the National Co-Investigating Judge and Mr. Kasper-Ansermet have locked horns on the issue of reopening the investigation in Case 003. It is also not likely to be the last. The previous International Co-Investigating Judge resigned over the way Case 003 has been handled and the appearance that the failure to investigate was politically motivated.[18] In the press release announcing his departure he noted “the Cambodian Prime Minister during a meeting with the Secretary-General that […] cases [003 and 004] “will not be allowed” did not reflect general government policy.”[19]

The divide between the international judges and the national judges can also be seen in a press release dated 26 October 2011 where the National Co-Investigating Judge laments about critical news reports in the international media that he maintained were based on “the minority opinion of the international judges [of the Pre-Trial Chamber] in relation to the appeal by a Civil Party Applicant.”[20] It also appears in the cases where the Chambers cannot assemble the needed super majority to decide on an appeal with the judges divided over national/international lines.[21]

The question remains as to the legal force of Mr. Kasper-Ansermet’s “decision”. The sad truth is that it probably has no enforceable value at all. Even though the ECCC proclaims itself to be an international tribunal, it is still a product of the Cambodian State and dependent on that State for its practical function. The Cambodian Prime Minister and all the Cambodian judicial officers have acted to shut down the investigations in Cases 003 and 004. The issuance of a “decision” to reopen the judicial investigation by the International Reserve Co-Investigating Judge is unlikely to actually begin an official judicial investigation. According to the Cambodian members of the court he lacks the authority to issue such an order. Even in the event that the international staff at the ECCC begin the investigation without their national counterparts because they believe the order to be valid, it is unlikely that any such investigation will be fruitful without the assistance of Cambodian officials. The only way to remove the obstacle to reopening the investigations is to remove the purely national element of the court and transform it into a truly international institution. However, to do so would require greater involvement by the international community, the lack of which is the precise reason why the ECCC was created as part of the Cambodian system in the first place.

[1] Case File No. 003/07-09-2009-ECCC-OCIJ, 2 December 2012.

[2] Ibid. at pp. 2-3.

[3] Ibid. at pp. 2, 4.

[4] Ibid. at p. 4.

[5] Ibid. at p. 5.

[6] Ibid. at p. 6.

[7] This basis is of dubious value. The accused would probably be happier to not be prosecuted in the first place than have the opportunity to respond to the accusations.

[8] Case File No. 003/07-09-2009-ECCC-OCIJ, 2 December 2012 at p. 7.

[9] Interoffice Memorandum of Judge Prak Kimsan, 3 February 2012.

[10] Case File 003/16-12-2011-ECCC/PTC, Opinion of the Pre-Trial Chamber Judges Downing and Chung on the Disagreement between the Co-Investigating Judges Pursuant to Internal Rule 72, 10 February 2012.

[11] Ibid.

[12] Ibid. at ¶¶ 31-39.

[13] Ibid. at ¶ 50.

[14] Statement by the International Reserve Co-Investigating Judge,, 9 February 2012.

[15] Ibid.

[16] Press Statement by the National Co-Investigating Judge,, 10 February 2012.

[17] Ibid.

[18] Press Release by the International Co-Investigating Judge,, 10 October 2011.

[19] Ibid.

[20] Statement of the Office of the Co-Investigating Judges,, 26 October 2011.

[21] See, i.e., Case File No: 004/07-09-2009-ECCC/OCIJ (PTC 02), Considerations of the Pre-Trial Chamber Regarding the Appeal Against Order on the Admissibility of Civil Party Applicant Robert Hamill, 14 February 2012.


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